What’s Next? Suits Against State Officials for roles played in the enforcement of unconstitutional “takings."

Primum non nocere; deinde ne - First do no harm; then try to prevent it.

I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of ___, that I will bear true faith and allegiance to the same and defend them against all enemies, foreign and domestic, and that I will faithfully and impartially discharge the duties of the office of ___, of The State of ___, according to the best of my ability, so help me God (or so I do affirm).

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Suits Against State Officials

Courts may open their doors for relief against government wrongs under the doctrine that sovereign immunity does not prevent a suit to restrain individual officials, thereby restraining the government as well. The doctrine is built upon a double fiction: that for purposes of the sovereign’s immunity, a suit against an official is not a suit against the government, but for the purpose of finding state action to which the Constitution applies, the official’s conduct is that of the state. The doctrine preceded but is most noteworthily associated with the decision in Ex parte Young, a case that deserves the overworked adjective, seminal.

Young arose when a state legislature passed a law reducing railroad rates and providing severe penalties for any railroad that failed to comply with the law. Plaintiff railroad stockholders brought a federal action to enjoin Young, the state attorney general, from enforcing the law, alleging that it was unconstitutional and that they would suffer irreparable harm if he were not prevented from acting. An injunction was granted forbidding Young from acting on the law, an injunction he violated by bringing an action in state court against noncomplying railroads; for this action he was adjudged in contempt. If the Supreme Court had held that the injunction was not permissible, because the suit was one against the state, there would have been no practicable way for the railroads to attack the statute without placing themselves in great danger. They could have disobeyed it and alleged its unconstitutionality as a defense in enforcement proceedings, but if they were wrong about the statute’s validity the penalties would have been devastating. On the other hand, effectuating constitutional rights through an injunction would not have been possible had the injunction been deemed to be a suit against the state.

In deciding Young, the Court faced inconsistent lines of cases, including numerous precedents for permitting suits against state officers. Chief Justice Marshall had begun the process in Osborn by holding that suit was barred only when the state was formally named a party. He presently was required to modify that decision and preclude suit when an official, the governor of a state, was sued in his official capacity, but relying on Osborn and reading Madrazo narrowly, the Court later held in a series of cases that an official of a state could be sued to prevent him from executing a state law in conflict with the Constitution or a law of the United States, and the fact that the officer may be acting on behalf of the state or in response to a statutory obligation of the state did not make the suit one against the state. Another line of cases began developing a more functional, less formalistic concept of the Eleventh Amendment and sovereign immunity, one that evidenced an increasing wariness toward affirmatively ordering states to relinquish state-controlled property and culminated in the broad reading of Eleventh Amendment immunity in Hans v. Louisiana.

For the reminder of the article and its line of cases please refer to the Cornell Law School Link here: https://www.law.cornell.edu/constitution-conan/amendment-11/suits-against-state-officials